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As property rights slide, odours rise

Last Friday, in a national "day of action" against factory farming, rural Canadians denounced the giant feedlots, mega hog barns and concentrated poultry operations that increasingly threaten their health and well-being. While demonstrators in Saskatchewan and Ontario called for provincial moratoriums on the hog industry’s expansion, activists in Alberta and Manitoba cut to the heart of the matter, insisting on local control over the siting of livestock operations. Their demands point to an often-overlooked fact: In robbing Canadians of their property rights, heavy-handed provincial legislators have brought us factory farms.

Nowhere has the disempowerment of individuals and communities been clearer than in New Brunswick, where Friday’s protests focused on Metz Farms 2 Ltd, an enormous pig farm outside Sainte-Marie-de-Kent, near the province’s eastern coast. The farm, established four-and-a-half years ago, is among the country’s most controversial. Housing 10,000 hogs at one time – 30,000 over the course of a year – it produces 24 million litres of liquid manure annually.

Whether stored in the farm’s 90-by-90 metre lagoon or sprayed on nearby fields, the manure smells. Local residents describe the odours from the Metz 2 farm as "unbearable" and "nauseating." Some complain of breathing difficulties, tearing eyes and sore throats, others of being kept from their gardens. Still others worry that the smells drive tourists away.

Local residents, who are also concerned about the air and water pollution often associated with manure, have worked relentlessly to persuade provincial politicians to shut down the operation, organizing motorcades and rallies, occupying government offices and gathering thousands of names on petitions.

The province defends Metz 2, noting that it has respected the acts and regulations governing it. That defence is hardly reassuring, given that the province does not regulate odours. In any case, both the government and the opposition have made it clear that they would rather shore up the farm with subsidies than shut it down.

Not so long ago, Metz 2’s fate would not have rested with the province. This essentially local dispute would have been resolved by the parties directly involved through discussion and negotiation or, if that failed, through the courts.

For centuries, courts resolved conflicts between farmers and their neighbours by applying the fundamental principle, "use your own property so as not to harm another’s." While farmers had rights to use and enjoy their property, they had responsibilities not to interfere with their neighbours’ rights to use and enjoy their property. Courts generally deemed such interferences nuisances and issued injunctions against them.

Of course, courts did not find all unpleasant farm activities to be nuisances. Courts rarely enjoined minor or temporary irritants or those offensive only to unusually sensitive people. And they tended to permit activities that they considered reasonable – especially those in keeping with the character of the neighbourhood. That said, courts rarely sanctioned severe odours. New Brunswick’s courts were no exceptions.

In 1985, a New Brunswick court heard a case concerning a pig farm in Charlo. Twenty-five neighbours objected to the recently expanded farm’s unbearable stench. Children could not play outdoors; families could not barbecue, air their laundry or even leave their windows open. Some complained of nausea, others of sleeplessness and stress. The court, determining that the odours constituted a nuisance, awarded damages and said that it would have issued an injunction had a fire not already shut down the farm.

Appalled by the decision, New Brunswick’s farmers demanded protection, and the government of the day lost no time in providing it. In just seven months, provincial courts could no longer defend citizens’ age-old rights to live undisturbed by agricultural nuisances, thanks to the Agricultural Operation Practices Act. As long as they did not violate a land use control law, the Health Act or the Clean Environment Act, farmers would not be liable in nuisance for odours, noises or dust.

Last year, the provincial government, nervous about the conflicts between Metz 2 and its neighbours, proclaimed an even broader Agricultural Operation Practices Act, expanding the list of protected nuisances to include vibrations, light, smoke and other disturbances. It established a government-appointed board – with four of its six members recommended by farm organizations – to mediate disputes between farmers and their neighbours. Although citizens dissatisfied with the board’s conclusions technically retain recourse to the courts, then agriculture minister Rodney Weston explained, "they don’t have a leg to stand on."

Sadly, New Brunswick’s Progressive Conservatives are by no means the only provincial politicians to have robbed rural residents of their rights in order to protect unviable farms. So-called "right-to-farm" acts have become the rule across Canada in recent decades. The acts vary from province to province but share several features. All permit pollution levels that the common-law did not. All shift important costs of farming operations from farmers to those living downstream or downwind of the farms. And all take decision making out of the hands of those directly affected and place it in the hands of a central authority. The costs to the environment, to human health, and to social peace have been enormous.